The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.1247 of 2024 (In the matter of an application under Section 482 of the Criminal Procedure Code, 1973) ----------- Prafulla Mohapatra ……. Petitioner -Versus- Gautam Pattnaik & another ……. Opp. Parties For the Petitioner : Mr. Pravat Kumar Muduli, Advocate For the Opp. Parties : Mr. Shanti Prakash Mohanty, Advocate No.2 CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA JUDGMENT _________________________________________________________ Date of Hearing: 02.05.2024 : Date of Judgment : 20.06.2024 _________________________________________________________ S.S. Mishra, J. 1. The petitioner is an accused in a complaint case being I.C.C. Case No.1742 of 2019 U/S. 138 of the Negotiable Instruments Act. The opposite party no.2 is the complainant in this case. The matter is pending before the Court of the learned J.M.F.C., Bhubaneswar. Despite the statute provides for disposal of the cases of such nature within a 2 stipulated period of time, the present matter is pending trial since last 15 years. 2. The parties have approached this Court multiple times at the interregnum stage. Various orders are being passed by this Court expressing anguish regarding the delay caused in disposal of the complaint. At the same time, various orders are being passed for the purpose of fair and effective adjudication of the case. The present case
Facts
has a checkered history. It would be relevant to give the background of the case for appreciating cause and pace at which the trial of the case has been proceeding. The sequence of the events bereft of details narrated herein for appreciation. 3. The petitioner and the opposite party no.1 had availed loan of Rs.32 lakhs from the opposite party no.2 on different dates for the purpose of execution of work at Nalco, Damanjodi & Koraput. After completion of the work, the complainant/opposite party no.2 was given a Cheque bearing No.449923, dated 10.03.2009 of the State Bank of India, Industrial Estate Branch, Bhubaneswar for an amount of Rs.32 lakhs having joint signature of both the accused persons. The opposite party no.2 deposited the said Cheque at Axis Bank, Satyanagar, Bhubaneswar. However, the said Cheque was dishonored by the Axis Bank due to Page 2 of 13 3 insufficiency of funds. Accordingly, the O.P. No.2 sent legal notice to the petitioner and the opposite party no.1. After receipt of the said legal notice, as they did not take any steps for payment of the amount in question, the opposite party no.2 filed 1.C.C. No.1742 of 2009 before the learned S.D.J.M., Bhubaneswar under Section 138 of the N.I. Act wherein the petitioner and the opposite party no.1 were arrayed as the accused nos.1 & 2 respectively. 4. After recording of the preliminary statement of the O.P. No.2- Complainant, learned S.D.J.M., Bhubaneswar took cognizance of the offence U/S. 138 of the N.I. Act against the petitioner and the O.P. No.1. 5. The O.P. No.1 was examined and cross-examined on 3/13.05.2011. The O.P. No.1 in his evidence, while admitting his and the petitioner’s signature on the Cheque, has further admitted that he himself and the accused no.2 i.e the petitioner are jointly liable to pay back the loan amount to the complainant/O.P.No 2. The petitioner was examined as D.W.2 and in his evidence while admitting his and Opp. Party No.1’s signature on the Cheque, he said that he does not know the complainant. However, he further took the plea in his evidence that he had filed complaint case bearing 1CC No.2632 of 2011 against the O.P. No.2-complainant and the O.P. No.1- Page 3 of 13 4 accused Gautam Pattnaik regarding mis-utilisation of his Cheque much after receipt of the notice in the complaint case filed U/S. 138 of the N.I. Act. 6. So as to discredit the evidence of the petitioner-accused wherein he had stated that he does not know the complainant, the present O.P. No.2 moved an application U/S. 91 Cr. P.C. inter-alia praying therein to call for the records from the State Bank of India, Industrial Estate Branch, Rasulgarh in respect of the Joint Current Account No. 30037990229, which stands in the name of both the accused persons wherein the present complainant Sanjib Mohanty has signed in the account opening form as introducer. The said application was allowed by the trial court vide order dated 11.12.2012. Accordingly, the cost was deposited by the complainant for production of the records from the concerned Bank. However, subsequently, as the complainant obtained the relevant documents under the RTI Act from the concerned Bank, he filed those documents and the same was accepted by the Court below on 15.01.2018. 7. While the matter stood, thus, the present petitioner-accused filed a petition U/S. 138 of the Evidence Act r/w Section-350 Cr.P.C. to pass appropriate order for attendance of the Bank Manager to be examined as Page 4 of 13 5 DW, which was rejected by the Court below vide orders dated 18.05.2019 and 15.07.2019 respectively. 8. Challenging the aforesaid orders, the petitioner filed CRLMC No.2533 of 2019 and the same was ultimately withdrawn and as such, the orders of the Court below attained finality. 9.
Legal Reasoning
The O.P. No.2-complainant moved this Court in CRLMP No.1012 of 2018 seeking for a direction of earlier disposal of the 1.C.C. Case No.1742 of 2009, wherein this Court vide order dated 13.01.2020 was pleased to direct the learned J.M.F.C., Bhubaneswar to dispose of the complaint as expeditiously as possible keeping in view the fact that earlier on 01.11.2011 similar direction was issued by this Court in CRLMC No 3599 of 2011 for disposal of the complaint within a stipulated time frame of 3 months. 10. In the meantime, the petitioner again moved this Court by filing CRLMC No.2855 of 2019 praying therein for a direction to the learned J.M.F.C., Bhubaneswar for production of records from the concerned Bank regarding the same account. This Court vide its order dated 13.01.2020 disposed of the CRLMC at the stage of admission with the following directions: “If the petitioner applies for certified copy of the documents in question to the bank concerned, the said bank shall supply the same within fifteen days of Page 5 of 13 6 receipt of the said application or else Court shall call for the same at the instance of the present petitioner.” 11. The petitioner remained silent for more than two years, without filing any application/petition before the Court below to call for the records from the concerned Bank till 20.09.2022. However, on 28.09.2022, when the matter was posted for final argument, an application straightway was moved for a direction to summon the Bank Manager for production of documents instead of submission of application before the Bank and obtain the certified copies of the documents as directed by this Court. 12. Since the aforesaid CRLMC was disposed of at the stage of admission, without noticing the complainant, the complainant moved I.A. No.2236 of 2022 for recall of the order dated 13.01.2020. This Court while disposing of the I.A vide order dated 12.12.2022, observed as under: “8. Mr. Mohanty, learned counsel for opposite party No.2 submits that the compliance ought to have been in respect of specific record which had originally been applied for from Bank but the petitioner has included more documents which was never intended by opposite party No.2 while placing the requisition. In any view of the matter, the Court is of the view that such an application which is pending before the learned court below under Anenxure-1 shall be examined and order to be passed thereon on merits and therefore, it should better be left to the discretion of the court concerned to decide. 9. Mr. Mohanty, learned counsel for opposite party No.2 cites a decision of the Apex Court in Daxaben Vrs. State Gujarat & Page 6 of 13 7
Decision
Others decided and disposed of on 29th July, 2022 and contends that an order passed by this Court may be recalled, if it is without jurisdiction or violates the principles of natural justice etc. 10. In the judgment (supra), the Supreme Court referring to an earlier decision in New India Assurance Co. Ltd. Vrs. Krishna Kumar Pandey (Criminal Appeal No.1852 of 2019) and followed in State of Punjab Vrs. Davindar Pal Singh Bhullar and Others reported in (2011) 14 SCC 770 held that a Court is not denuded of inherent power to recall a judgment and/or order which was without jurisdiction, or in violation of principles of natural justice, or passed without giving an opportunity of hearing to a party affected by the order (emphasis is by the Court), or where an order was obtained by abusing the process of law. Mr. Muduli, learned counsel for the petitioner submits that it is a judgment which relates to a service matter and the question as to whether an order or judgment be recalled or not was left open for a decision in appropriate proceeding and therefore, it cannot be applied to the present case. Even though considering the aforesaid judgment, it has to be concluded that judgment or order can only be recalled, if it is delivered or passed without jurisdiction, or in violation of principles of natural justice, or by not giving opportunity of hearing to the other side who is affected by thereby which is relevant for the case at hand (as highlighted earlier). In the present, admittedly, opposite party No.2 had not entered appearance in CRLMC No.2855 of 2019 which was disposed of at the stage of admission but even by such an order, opposite party No.2 is not prejudiced as all the facts related to the dispute were placed on record including the fact that opposite party No.2 did not press the matter or intended to bring the bank documents before the learned court below as originally applied for and was drawn to the notice of the Court which ultimately considering the same passed the order dated 13th January, 2020. It is not that the petitioner suppressed any such facts with regard to the application removed by opposite party No.2 etc. and under the above circumstances, the Court considered it with just and appropriate to grant liberty to the petitioner even when opposite party No.2 was not inclined to call for the record and even declined to cross-examine the petitioner. The Court, in the peculiar facts and circumstances of the case, is of the conclusion that since there is no prejudice shown to have been caused to opposite party No.2, the order dated 13th January, 2020 of this Court in CRLMC No.2855 of 2019 is not required to be called. However, the Court is also of the view that as the matter is pending since 2009 and there has been an application moved by the petitioner for consideration so as to call for the records from the Bank in compliance of the Court’s order in CRLMC No.2855 Page 7 of 13 8 of 2019, a target should be set for the court below to consider the same and pass appropriate orders thereon on merit. The contention that the order was passed in 2020 whereas a copy of the same was produced before the learned court below in 2022, the Court is of the view that notwithstanding such delay, the liberty which is allowed in favour of the petitioner to bring in defence cannot be denied and revoked. Hence, the Court is of the view that there is no ground or justifiable reason exists for the Court to recall the order dated 13th January, 2020 passed in CRLMC No.2855 of 2019. 11. Accordingly, it is ordered. 12. In the result, I.A. stands disposed of with a direction to the learned J.M.F.C., Bhubaneswar to consider and pass appropriate orders with regard to the application dated 20th September, 2022 filed in 1CC Case No.1742 of 2009 on merit without being influenced by any of the observations made herein above and also to expedite the hearing and disposal of the complaint proceeding at the earliest preferably within a period of four months from the date of receipt of the copy of the above order.” 13. The application dated 20.09.2022 filed by the petitioner had been disposed of by learned S.D.J.M., Bhubaneswar vide the impugned order dated 16.12.2023 in the light of the aforesaid order passed by this Court. The relevant part of the impugned order reads as under: “xxx However, after obtaining those relevant documents under the RTI Act, complainant produced the same in the court on 15.01.2018. Hence there is no necessity to linger the case to carry out the order of the then J.M.F.C., Bhubaneswar passed on 11.12.2012. On the other side, the accused persons have not assigned any reason to the satisfaction of the court that in which way they will be prejudiced, if the above mentioned order is not carried out. Rather the conduct of the accused clearly shows he has the tendency to procrastinate the trial for years together on some pretext or the other which is disclosed from the case record. 10. xxx xxx “As a sequel of above discussion, the court is of humble opinion that there is no necessity to summon the Bank Manager. Xxxxx Page 8 of 13 9 11. Allowing the prayer of the accused petitioner would be nothing but would be a futile exercise of jurisdiction wasting the time, money and manpower of the court and the litigants. Xxx xxx.” 14. The disposal of complaint case, i.e., 1.C.C. Case No 1742 of 2009 had to suffer by the aforementioned proceedings before this Court as well as the interim proceeding before the trial Court. Therefore, the repeated direction of this Court for speedy disposal of the complaint case yields least result. 15. Present proceeding has been drawn up by the petitioner for redressal of his grievance regarding bringing on record the Bank documents as stated above to prove his defence. 16. Mr. Muduli, learned counsel for the petitioner submitted that the impugned order passed by the Court below is directly in contravention to the direction of this Court on 13.01.2020. This Court had expressed displeasure for not complying its order to its letter and spirit. He emphasized the following para of the order dated 13.01.2020 passed in CRLMC No.2855 of 2019: “Needless to say that, when an order is passed by the Court, it must see that its order is complied with and if required, to take coercive steps against the persons who has not complied with the said order. The learned P.O. appears to have not adhered to the same in this case. Therefore, this Court hopes and trusts that the trial court shall do well to see that its order for summoning the aforesaid witness and production of the document is complied with. If at all the complainant does not want to adduce the same as evidence, the Court however, is not bereft of jurisdiction not to insist upon the same. But, Page 9 of 13 10 it must give reasonable opportunity to the petitioner to adduce the same in its defense by calling for the documents from the bank concerned or in alternative, if the petitioner files the certified copy of the documents to admit the same into evidence without insisting the original as the same is permissible under the Bankers’ Books Evidence Act, 1891. However, reasonable opportunity in this regard must be given to adduce the same as defense evidence, if the Court recalls its earlier order of production of the said documents. In the meantime, if the petitioner applies for certified copy of the documents in question to the bank concerned, the said bank shall supply the same within fifteen days of receipt of the said application or else the Court shall call for the same at the instance of the present petitioner. . (Emphasis supplied) Xxx xxx xxx” 17. Mr. Muduli, learned counsel for the petitioner further submitted that in view of the aforementioned order of this Court, it was imperative on the part of the trial court to allow the application moved by him. However, on the contrary, the trial court dismissed the application filed by the petitioner. 18. Mr. S.P. Mohanty, learned counsel for the opposite party no.2 has relied upon the judgment of the Hon’ble Supreme Court in the case of In Re: Expeditious Trial of the Cases U/S. 138 of the N.I. Act, 1981, reported in 2021 SCC Online 325, wherein the Hon’ble Supreme Court has fixed curtained the guideline to ensure the speedy disposal of the N.I. Act cases without unnecessarily prolonging the same on sheer technical ground. Learned counsel for the opposite party no.2 has relied upon para-24 of the said judgment wherein the guideline has been formulated. Page 10 of 13 11 The opposite party no.2 has also relied upon the judgment of the Hon’ble Supreme Court in the case of Indian Bank Association vs. Union Bank of India reported in (2014) 5 SCC 590. He has supplied emphasis to various directions made by the Hon’ble Supreme Court regarding the speedy disposal of the N.I. Act cases. Para-23 of the said judgment is reproduced herebelow: “Directions 23. Many of the directions given by the various High Courts, in our view, are worthy of emulation by the criminal courts all over the country dealing with cases under Section 138 of the Negotiable Instruments Act, for which the following directions are being given: 23.1. The Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under Section 138 of the Act is presented, shall scrutinise the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons. 23.2. The MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. The court, in appropriate cases, may take the assistance of the police or the nearby court to serve notice on the accused. For notice of appearance, a short date be fixed. If the summons is received back unserved, immediate follow-up action be taken. 23.3. The court may indicate in the summons that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, the court may pass appropriate orders at the earliest. 23.4. The court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251 CrPC to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for recalling a witness for cross-examination. 23.5. The court concerned must ensure that examination- the in-chief, cross-examination and re-examination of Page 11 of 13 12 complainant must be conducted within three months of assigning the case. The court has option of accepting affidavits of the witnesses instead of examining them in the court. The witnesses to the complaint and the accused must be available for cross-examination as and when there is direction to this effect by the court. 19. Relying upon the aforementioned judgment, learned counsel for the opposite party no.2 submitted that defying the guideline formulated by the Hon’ble Supreme Court 1.C.C. Case is going in the trial since last 15 years and the delay is attributable to the accused-petitioner alone. The accused-petitioner has been moving repeated applications before this Court and the court below to procrastinate the proceeding on sheer technical grounds. Therefore, he submits that the petitioner should not be encouraged any more as the present petition being one such attempt to delay the trial, the same shall be dismissed with heavy cost. 20. Perusal of the impugned order is amply clear that the documents sought to be brought on record by the accused-petitioner has already come on record at the instance of the complainant. If the petitioner seeks to rely upon those documents for his defence, he can very well do that instead of moving uncalled for application that to after more than 2 years from the date of the direction of this court. As the complainant has already placed on record the entire documents, the trial court would definitely take into consideration the worth of those documents. That is Page 12 of 13 13 the reason, the trial Court had rejected the application of the petitioner on the ground that there is no prejudice caused to the petitioner and the entire exercise to recall the bank witness for production of the documents would be a futility exercise in view of the fact that those documents are already there on record. 21. In my considered view, the reasoning given by the Court below while rejecting the application suffers no legal infirmity. It is also important to mention that this Court has already fixed a target to conclude the trial. Therefore, the attempt on the part of the petitioner to prolong the trial should not be encouraged. Therefore, the learned trial Court should proceed with the matter without further delay to conclude the trial as per the target fixed by this Court. 22. Accordingly, the CRLMC is dismissed. ……………… S.S. Mishra (Judge) Orissa High Court, Cuttack The 20th June, 2024/Subhasis Mohanty, Personal Assistant Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: P.A. Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 10-Jul-2024 18:46:25 Page 13 of 13